My favorite email every week.

Many have commented on why Putin has done this or that related to Ukraine. One thing is clear, he is a true believer in the idea of international law. His actions have been carefully performed as to build a legal case for himself based on the confused corpus of international law, and more importantly the precedents set in the last 30 years. His belief is obviously misplaced, but it is at least internally consistent and relatively honest. Quite honest for a world leader. The behavior clearly appeals to many outside the western PMC and undercuts their propaganda in the eyes of a great many.

In the grander scheme, can there be a system of justice without the feeling of guilt? That is, perhaps the code of society is dependent on individuals feeling a sense of guilt for acting outside the code. If so, it’s problematic for Liberalism based on the supremacy of the individual good because the rewards for acting outside the code of society are generally great. And then the code becomes get what you can and to hell with everyone else. At which point justice isn’t possible because there is no code of society.

Expand full comment

I am biased towards simplicity. The purpose of war is to destroy and exterminate the enemy (no matter the political calculations at its onset). Thus, there can be no such thing as a "war crime"; (or even more ludicrous, "rules of war"). The very act of war is, to quote the late, great Robert Fisk, "the ultimate failure of the human spirit". For me, the epiphany came towards the very end of a movie, Coppola's masterpiece "Apocalypse Now". The insanity of the Kurtz/Brando character represents the absolute of what is war.

As far as international justice is concerned, my mentor was my father, a citizen of an insignificant, tiny country who nevertheless had a voice in international diplomacy in the 1960s and 70s. When demoralized and exasperated by the machinations of "great" powers, he would simply say "might makes right". It's that simple.

Finally, yes, human rights "law" is an amorphous concept, yet I'm enough of an optimist to subscribe to the idea that there are universal human rights that transcend the myriad cultures on our planet. These rights are what it means to be a member of our species.

Expand full comment

Compared to Nuremburg, Tokyo war crimes trials were even more of a mess: the Emperor had to be allowed to live and continue to rein, but the key members of the Emperor's government could not be allowed to live, and like good imperial retainers, several Japanese leaders took the blame upon themselves--there is an anecdote that I heard where Tojo said something that could be interpreted as putting some of the blame for the war on the Emperor. The records were destroyed and Allied officials had to negotiate overnight with Tojo to decide what he "should" say so that the blame could be "appropriately" apportioned.

Expand full comment

There is a third world. The world of detachment.

Law us useful, as far as it goes. Law's purview, however, is benefit and harm. Beyond that -- a huge beyond -- law cannot go. People do things, such as revenge, which benefit no one and harm everyone. Benefit-harm, cost-benefit analyses have no application there.

Of such matters, transcending capacities of law, do statesmen treat. Lawyers and law are of proximate use there. Detachment and mutual benefit are the ways of reality as well as statecraft.

Expand full comment

"As these two examples show (and there have been many since) international law is, indeed, not just a discourse of power, but also a discourse of people who want power, or who want the vicarious thrill of seeing death and destruction meted out to people they dislike, but under a safely legal camouflage."

Finster's First Law readeth thusly: "There is no such thing as law. There is only context."

The longer formulation would have it that "Laws are for little people. Policy is for People Who Matter, because policy determines when the law applies, if it applies at all, and to whom."

Cark Schmitt is more and more looking like the Prophet Of The Age.

Expand full comment

An interesting essay on law and justice indeed. Some very good points made.

I recall, back during the war between the Serbs and the rest, that as a young man, I was often calling out for NATO to bomb the crap out of the Serbs and end the conflict. Then I read "The Balkan Ghosts" by Robert Kaplan and subsequently had a different perspective on that part of the world couple with a "slightly" different view of the Serbian cause.

The Ukraine war found me with a different mentality as I was more aware of the tension running up to 2014 and the Minsk Agreements (later found to be a sham to provide time to prepare for war). I was neutral to beginning with but as the Western and Ukrainian media propaganda war intensified I have "swung" to supporting the Russian cause. It will be interesting to see how "International Law and Justice" develop after the Russians win this conflict.

Expand full comment

Sandel and his "“the right thing to do,”. "Thucydides (History of the Peloponnesian War bk. 5, ch. 89) answered him ~2500 years ago: "Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must..."

Levity aside, IMO it is a mistake to conflate individual, national and global justice. This was one of the key points Niebuhr made in his book “Moral Man, Immoral Society (1932)”, where he states “a sharp distinction must be drawn between the moral and social behavior of individuals and of social groups, national, racial, and economic; and that this distinction justifies and necessitates political policies which a purely individualistic ethic must always find embarrassing.” This issue is not improved by the lack of normative ethics in most members of the PMC past and present: “The moral attitudes of dominant and privileged groups are characterized by universal self-deception and hypocrisy” (ibid). Paraphrasing Tacitus “They rape, plunder, butcher, steal, and these things they misname empire: they make a desolation and they call it peace.” A prescient description of the current “liberal” morality play “Right to Protect”, as espoused by the likes of Samantha Powers, Madeline (it was worth it) Albright, Victoria (family-blog the EU) Nudelman, etc. A lot hangs in balance in the Ukraine!

Expand full comment

Thank you for your argument! As usual, it is a domain that can be expended into every possible direction, such as human rights concept is only (perhaps) 300 hundred years old - going back to Grotius; the idea of prescriptive and descriptive law is another direction. ANYWAY, I really liked your take. Another way to frame it, might be to say that what is happening right now is that moralising veneer has been thrown over legal one, and not only in the international law ‘arena’. Thank you again, your articles always make me to think. A rare occurrence these days.

Expand full comment

I wonder if people commonly ask what is "unjust," Socratic style, rather than what is just. The initial responses are simple and quick, in my experience, but, once you start getting more specific, people tend to get testy and combative. Practical institutions for "justice" though needs to define what "unjust" means and what sanctions are to be meted out to them--and that is usually the source of their own "injustice," precisely because it forces people to confront their own contradictory and murky notions of justice--especially when multiple tribes are involved.

Expand full comment

To say “What we think is “just” changes a lot with time and context” is to subject the concept of justice to the vagaries of fashion.

Justice is a very basic concept, along the lines of ‘Do as you would be done to’. Almost everyone would like to be treated with understanding and compassion, and have their wishes respected. That would be true justice, and everything else can be extrapolated from that basic concept. It easily subsumes within itself subordinate issues, such as discrimination of any sort. Evidently even young children can recognise, and define, justice in these simple terms, if they are asked. Descriptions which abstract themselves away from this concrete base become tangential and misleading the further they go.

I would also dispute your view of the origin of laws, and their connection with ‘justice’. It is clear (going back to Hammurabi) that laws were originally, and still are, formulated by the rich and powerful in order to protect their wealth, position, property and privileges. These (especially ‘property’ laws) are the oldest and most fundamental of laws. Even laws which ostensibly protect the rights of others in society are there as a sop, in order to deflect criticism, pacify the ‘lower orders’. and preclude the potentiality of revolution against the state. 'Justice' in this case is a mere add-on to make the laws seem acceptable to all.

The trial of Socrates is a very good example of this sort of law in action. Socrates was found guilty, not because he had committed any crime or act of injustice, but because he undermined the ‘righteousness’, and therefore the whole basis for the entrenched privileges and property rights, of the demos.

As an aside, police forces are not instruments in pursuit of justice either - their primary duty is the maintenance of ‘public order’, (i.e. protection of property rights) as illustrated by the newly formed London ‘Met’ which put down the Chartist demonstrations in 1839, 1842 and 1848, and in the next century the Yorkshire and other forces which brutally attacked the miners during the famous strike.

International law however, is as you describe it, but it would seem to be a worthwhile endevour to aid Russia, China and India, if only to defeat the lawlessness of the so-called ‘rules’ concocted by the US to further its imperial ends.

Expand full comment

Very good again! For me the most damning thing about international law, as applied in some of your examples about conflicts in "ad hoc" trials is that when in these trials you are adopting, let's say, a new and creative definition of genocide, at the end of the trial you will necessarily be applying new law or new judicial concepts retroactively since these concepts didn't exist before, when the supposed crime was committed. That, in most legal systems would automatically make the verdicts invalid. Was this used in any of the cases you mention (Rwuanda, Sebrenica...) as an argument or appeal against those decisions?

Expand full comment